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ordinary conveyancing precaution before allow–
ing their client to take a sub lease of finding out
by inspection of the head lease what were the
covenants restrictive of user or otherwise con–
tained therein.
This case raises serious implications for solici–
tors. A lessee, in the absence of stipulation to the
contrary, is not entitled to investigate the lessor's
title, neither has it been common practice, on
taking a lease for a short term, to require pro–
duction of all superior leases to ascertain the
existance or otherwise of restrictive covenants.
The Council have taken the opinion of counsel
who has advised that while the decision of the
English Court of Appeal is special to the facts
of the case under consideration as set out in the
report, and while it is not possible to say that
an Irish Court would arrive at precisely the same
conclusion upon the same set of facts, it is highly
probable that they would do so.
It is the business of the tenant if he does not
protect himself by an express warranty to satisfy
himself that the premises are fit for the purpose
for which he wants to use them, whether that
fitness depends upon the state of their structure,
the state of the law, or any other relevant cir–
cumstances. Accordingly, on this view, there is no
warranty or guarantee by the lessor or sub-lessor
of the premises that there are no restrictive cov–
enants which would prevent the lessee or sub–
lessee from using the premises in the manner
desired.
As regards the position of the solicitor, having
regard to the
obiter dictum
of Russell, L. J.,
counsel advises that it is the duty of the solicitor
for an intending sub-lessee to acquaint himself
with the purposes for which his client requies
the property and to ensure that there are no
defects of title or otherwise which would prevent
his client from using it for the purpose for which
he requires it. The discharge of this duty may
require the solicitor for the intending sub-lessee
to inspect, or make inquiry as to the existence
and nature of any restrictive covenants under
which the sub-lessor holds. If the solicitor for
the lessee has an opportunity of negotiating the
terms of the contract with the intending sub-lessor
he should ensure that provision is made to enable
him to obtain all appropriate and necessary infor–
mation in the circumstances of the case. He would
be negligent if he were to permit a client wishing
to acquire and lay out money on a property to
enter into a contract for a sub-lease which would
preclude him from acquiring the appropriate in–
formation, including, if necessary, an investigation
of the lease under which the sub-lessor holds the
property without warning him of
the possible
consequences.
If the solicitor for the intending sub-lessor, on
being asked by the solicitor for the intending
sub-lessee as to the existence or otherwise of re–
strictive covenants, should give a reckless and
untrue answer he could be held liable for dam–
ages, whether he gives an express warranty or
not. This would appear to follow from the iccent
English decision in Hedley Byrne v Heller and
Company, where it was held that a bank issuing
a reference for a customer being aware that the
reference would be used for the purpose of ob–
taining credit from a third party would be liable
for any financial
loss arising from the bank's
negligence, in the absence of an express disclaimer.
It appears to follow therefore, from the
obiter
dictum
of Russell, L. J., and counsel's opinion
thereon,
that the sub-lessee's solicitor may be
liable for negligence if he fails to make proper
enquiries as to the existence of restrictive coven–
ants in the head lease, and that the sub-lessor's
solicitor may be liable for damages to the sub–
lessee if he recklessly gives a false answer to an
enquiry by the sub-lessee's solicitor.
Counsel advises that if
the information ob–
tained as a result of enquiries by the sub-lessor's
solicitor shows that the intended sub lease would
be void the solicitor acting for the sub-lessee
should inform his client and should not proceed
with the transaction. If the information received
shows that the intended lease, or sub lease, would
be lieable to forfeiture because of breach of coven–
ant by the intended sub lessor the sub-lessee's
solicitor should explain this to his client, bearing
in mind the possibility of getting a waiver or the
covenant or relief against forfeiture. If, despite
proper enquiries and information obtained, the
client proceeds contrary to advice and thereby
sustains damage he cannot hold his own solicitor
liable. If the solicitor for the intending sub-lessee
is unable, notwithstanding enquiry, to obtain any
information as to the existence or otherwise of
restrictive covenants
in
the superior
lease, he
should likewise inform the client of the risk which
he takes in proceeding without information. If
the client, having been properly advised as to the
risk, proceeds on his own judgment the solicitor
will not be liable for negligence.
Having regard to the importance of the matter
the Council brought it to the attention of the
Commission on Landlord and Tenant Law.
EXAMINATIONS
First Law Examination, 4th and 5th September,
last day for entry, 14th August.
Second Law Examination, 5th September (after-
15